In senior living, healthcare, and other highly regulated industries, litigation risk rarely turns on a single clinical decision or isolated event. Increasingly, outcomes hinge on what evidence exists, what evidence no longer exists, and why.
That is why spoliation of evidence and the duty to preserve it has become one of the most consequential, and least understood, areas of modern risk management.
At Adelman Firm, we are actively tracking spoliation law across all 50 states, federal courts, and emerging statutory developments, with a focus on how these rules intersect with real-world operations, claims management, and regulatory exposure. California, in particular, is now on the radar with a significant statutory change that materially alters the risk profile in elder abuse litigation and directly impacts evidence preservation strategies in pending and future cases.
Spoliation of Evidence: A Legal Concept with Operational Consequences
“Spoliation” occurs when a party with an obligation to preserve evidence fails to do so whether by destruction, alteration, concealment, or loss. That failure can be intentional or negligent, and it can involve paper records, electronic data, surveillance video, or physical evidence
What makes spoliation uniquely dangerous is that courts do not view it as a neutral mistake. Instead, spoliation is treated as conduct that undermines the integrity of the judicial process itself. As a result, sanctions can be severe and outcome-determinative, even where the underlying claim might otherwise be defensible.
Across the country, courts address spoliation in different ways. Only a small group of states recognize some form of an independent tort for spoliation. Most jurisdictions, including federal courts, address spoliation through evidentiary sanctions, adverse inference instructions, exclusion of defenses, or even dismissal or default judgment in extreme cases.
The practical takeaway is simple: you do not need a separate spoliation lawsuit for spoliation to materially increase liability exposure.
Federal Courts and the “Reasonable Anticipation” Standard
In federal court, spoliation is governed by the court’s inherent authority and the Federal Rules of Civil Procedure. Most federal courts apply a familiar three-part framework:
- Did the party have a duty to preserve evidence at the time it was lost?
- Was the evidence destroyed with a culpable state of mind?
- Was the evidence relevant to a claim or defense?
Critically, federal courts have made clear that the duty to preserve does not depend on a lawsuit being filed. The obligation arises when litigation is reasonably anticipated even in the absence of a court order, subpoena, or discovery request.
This standard is where many organizations get into trouble. By the time a demand letter or preservation letter arrives, the duty often already existed sometimes weeks or months earlier based on the nature of the incident itself.
California: From Reversal to a New, High-Stakes Spoliation Framework
California’s spoliation law has long been nuanced. Although California was once the first state to recognize spoliation as an independent tort, it later reversed course and declined to recognize either first-party or third-party spoliation claims, relying instead on sanctions and evidentiary remedies.
That landscape has now changed in a meaningful way for elder abuse litigation.
Effective January 1, 2026, California has adopted a new spoliation standard under the Elder Abuse and Dependent Adult Civil Protection Act. Under this framework, if a court or arbitrator finds that a defendant engaged in spoliation of evidence in an elder abuse case, the court may lower the plaintiff’s burden of proof for enhanced remedies from clear and convincing evidence to a preponderance of the evidence.
This is not a procedural tweak. It is a substantive shift that can materially alter exposure, settlement leverage, and trial risk.
The statute defines spoliation broadly to include intentional destruction, concealment, or improper alteration of records or electronically stored information where the conduct materially prejudices the opposing party. Courts are specifically directed to consider whether evidence was destroyed:
before the end of a legally required retention period,
in violation of the company’s written records-retention policy, or
after receipt of a written litigation preservation or evidence-hold letter.
In practice, plaintiff’s counsel are already signaling how they intend to use this statute by issuing preservation letters very early, often immediately upon retention, and framing any subsequent data loss as spoliation with statutory consequences.
Preservation Letters Are Not the Trigger — They Are the Warning Shot
One of the most important points we emphasize to operators and risk management teams is this: preservation letters do not create the duty to preserve evidence. They confirm that the duty already exists.
Under federal case law and the standards adopted by most courts, the obligation arises when an organization knows or should know that an incident is likely to result in a claim and that certain evidence may be relevant.
In senior living and healthcare, that “reasonable anticipation” can be triggered by:
a serious fall, fracture, or unexpected death,
a significant change in condition or transfer,
allegations of abuse, neglect, or improper supervision,
internal incident reports documenting injuries or safety events,
grievances or complaints from residents or families,
regulatory investigations or survey activity, or
HR matters where litigation is reasonably foreseeable.
If the answer to “Could this lead to a claim?” is yes — or even probably — the preservation obligation has already begun.
What a Defensible Litigation Hold Must Actually Cover
Once triggered, preservation cannot rely on business-as-usual retention practices. A defensible litigation hold requires deliberate action.
At a minimum, it must identify people, systems, and data sources, including:
electronic health records,
emails and internal messaging platforms,
text messages and personal devices used for work,
surveillance video and access-control systems,
incident reports, staffing records, and schedules,
HR and training documentation, and
any third-party systems that store relevant data.
It must suspend auto-deletion and overwriting, instruct custodians clearly, and remain in place until the matter is resolved and the hold is formally lifted. Courts increasingly look not only at whether a hold existed, but how it was implemented, monitored, and documented.
Why This Matters Now More Than Ever
California’s new elder abuse spoliation framework significantly raises the stakes. A spoliation finding can now:
lower the plaintiff’s evidentiary burden,
increase the likelihood of adverse inference instructions,
escalate settlement value, and
materially increase verdict exposure.
In this environment, robust, documented evidence-preservation and litigation-hold practices are no longer optional “best practices.” They are core risk-mitigation tools.
How Adelman Firm Can Help
At Adelman Firm, we work with operators, risk management teams, and leadership to move evidence preservation out of the abstract and into practical, defensible processes. Our work includes:
reviewing and stress-testing existing litigation-hold and preservation policies,
aligning records-retention schedules with litigation reality,
developing clear protocols for responding to preservation letters,
training leadership and frontline teams on preservation obligations,
and delivering focused webinars and workshops tailored to claims and operational teams.
A lot has changed — and more is coming. Organizations that treat evidence preservation as a strategic priority will be far better positioned than those reacting after the fact.
If you would like to review your current protocols, explore training options, or discuss how these developments affect your risk profile, we welcome the conversation.
Contact us for a discussion!